TMCEC Bench Book
CHAPTER 7 TRIAL PROCEEDINGS
Defendants in municipal courts have a right to appear by counsel as in other cases. Art. 45.020, C.C.P.
When the defendant appears, the court can require the defendant to enter a plea in writing. Art. 45.021,
C.C.P. A defendant who wants the judge to hear the evidence and decide his or her case must waive the
right to a jury trial in writing. Art. 45.025, C.C.P. Unless good cause is shown by the defendant, a
municipal court may order a defendant who does not waive a jury trial and who fails to appear for the trial
to pay the costs incurred for impaneling the jury. This order is enforced by contempt as prescribed by
Section 21.002(c), G.C. See Art. 45.026, C.C.P.
If the prosecutor is not present at trial—both bench and jury—the court may: (1) postpone the trial to
another date; (2) appoint an attorney pro tem (see Art. 2.07, C.C.P.); or (3) proceed to trial. Art. 45.031,
C.C.P. If the judge opts to proceed to trial, the State’s failure to present a prima facie case of the offense
alleged in the complaint entitles the defendant to a directed verdict of “not guilty.” Art. 45.032, C.C.P. In
this instance, State witnesses, such as the peace officer, may be present at the trial but until called to
testify for the State by the prosecutor, the witness would not testify.
Because procedures for conducting a bench trial differ from a jury trial, there are separate checklists for
these procedures.
1. The Non-Jury Trial (Bench Trial)
Checklist 7-1
Script/Notes
1. Opening ceremony and remarks
a. Opening announcement given by bailiff or
court clerk.
“All rise! The Municipal Court
of the City of _____ is now in
session. The Honorable _____ ,
judge presiding.”
b. Judge’s opening statements.
(1) Explain court procedures.
(2) The court may want to repeat the
admonishments made on first
appearance.
c. Call case for trial.
See Checklist 4-3.
“I call the case of the State of
Texas vs. (Defendant’s name).”
(1) Prosecution and defense announce
ready for trial, make motions for
continuance, or present pretrial
motions (e.g., motion to suppress).
2. The prosecutor reads the complaint.
a. The defendant is entitled to a copy of the
complaint at least one day before trial, but the
defendant can waive that right.
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Art. 45.018(b), C.C.P.
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b. Ask the defendant if he or she understands the
charge and the rights explained earlier. The
defendant must be provided a reasonable
amount of time to secure counsel. If the
defendant does not waive a jury trial in
writing, the case must be docketed as a jury
trial.
Art. 45.025, C.C.P.
3. Defendant enters a plea.
a. Ask the defendant if he or she waives his or
her right to a jury trial, and have the defendant
sign a written waiver.
See TMCEC Forms Book: Plea
Form.
b. The defendant then enters a plea of:
(1) Guilty;
(2) Nolo contendere (no contest);
(3) Not guilty; or
(4) Special plea (double jeopardy).
c. If the defendant refuses to enter a plea, the
court must enter a plea of not guilty for the
defendant.
Art. 45.024, C.C.P.
d. If the defendant pleads guilty or nolo
contendere, then the only remaining issue is
the amount of fine, and the court determines
the punishment.
Art. 45.022, C.C.P.
See Checklist 8-1.
4. Place witnesses under “The Rule.”
Rule 614, T.R.E.
a. At the request of either the defense or
prosecution, or on your own motion, the court
may prevent witnesses from hearing the
testimony of other witnesses.
“All those of you who may be
witnesses in this case who are
now in the courtroom, please
stand and raise your right
hand.”
(1) Determine all possible witnesses.
(2) Give oath to witnesses.
(3) Admonish witnesses as to “The
Rule.”
b. Before a victim, close relative of a victim, or a
guardian of a victim can be excluded under
“The Rule,” the moving party must show, and
the court must determine that:
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“Do you solemnly swear or
affirm that the testimony that
you are about to give in the case
now on trial is the truth, the
whole truth, and nothing but the
truth (so help you God)?”
“Ladies and gentlemen, ‘The
Rule’ has been invoked. ‘The
Rule’ means that the witnesses,
except the defendant, must
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(1) The victim (or relative or guardian)
will testify; and
(2) The testimony of the witness/victim
would be materially affected if the
witness/victim is not excluded under
The Rule.
c. If either side asks the judge to make an
exception for a particular witness (for
example, the crime victim or an expert
witness), the judge may grant the exception if
it is determined that the testimony of the
witness will not be tainted or influenced if
that person is allowed to remain in the
courtroom during the trial and to hear the
testimony of the other witnesses in the case.
remain outside the hearing of
the courtroom at all times while
testimony is being heard, except
when testifying or until
discharged. If you are a witness,
you must stay close enough so
that you may be reached when
needed.”
“You must not converse with
each other or with any other
person about the case, and you
are not read any report of or
comment upon the testimony in
the case while under ‘The
Rule.’ You may, however,
discuss the case with attorneys
in the case outside the presence
of other witnesses. Please
remain outside until called.”
For a violation of “The Rule,”
contempt may be an option. See
TMCEC The Municipal Judges
Book: Chapter 5.
5. Opening statements.
Art. 36.01(b), C.C.P.
a. Prosecution first.
b. Defense second. (Defense may reserve
opening statement until after the State rests its
case-in-chief, as long as the defense presents a
case.)
c. Should the prosecution waive its opening
statement, the defense may not make an
opening statement until the defense presents
its case-in-chief.
6. Presentation of evidence.
a. All testimony must be presented under oath.
b. Prosecution’s case
(1) State’s direct evidence
“Do you solemnly swear or
affirm that the testimony that
you are about to give in the case
now on trial is the truth, the
whole truth, and nothing but the
truth (so help you God)?”
(2) Defendant’s cross-examination
(3) State’s redirect examination
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(4) Defendant’s recross-examination
7. Prosecution rests.
8. Motion for directed verdict:
Art. 45.032, C.C.P.
a. At this point, the defense is permitted to
request a motion for directed verdict of
acquittal. The motion is based upon the belief
of the defense that the State has failed to
present evidence proving each and every
element of the offense.
b. If the judge believes that the defense is
correct, then the judge should return a verdict
of not guilty.
c. Granting the motion has the same practical
effect of ending the trial in an acquittal.
Overruling the motion results in a
continuation of the trial, and the defense
would then be allowed to present its case.
9. Defendant’s case:
a. Defendant’s direct examination.
b. State’s cross-examination.
c. Defendant’s redirect examination.
d. State’s recross-examination.
10. Rebuttal evidence, if any.
The prosecution may present rebuttal evidence in the
same manner as the prosecution’s case-in-chief.
11. Prosecution closes.
If the prosecution presents more evidence, the defense
may present more evidence if it chooses.
12. Defense closes.
13. Closing arguments:
a. Prosecution argues first (may waive).
b. Defense makes its arguments.
c. Prosecution has right to argue last.
d. Equal time should be given to each side.
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14. Decide whether the State proved its case, render
judgment orally in open court, and enter the judgment
in the docket.
Art. 45.041(d), C.C.P.
See the TMCEC Forms Book
for a variety of judgment forms.
a. All persons are presumed to be innocent, and
no person may be convicted of an offense
unless each element of the offense is proven
beyond a reasonable doubt.
b. If you return a finding of guilty, render
judgment by assessing a specific fine amount
within the range permitted under the statute or
ordinance under which the defendant was
prosecuted.
See Chapter 8 in this book for
more information on
sentencing.
c. If the defendant is found guilty, inform the
defendant of the right to appeal.
“You have the right to appeal
my decision. Appeal is to the
county court. In order to appeal
this case, you must give notice
of appeal and file a bond with
this court in the amount of
(calculate and state the amount of
twice the fine and costs) within 10
days of tomorrow’s date.”
The procedure may vary for
courts of record.
See Art. 45.013, C.C.P., for
enlargement of time period if
bond filed by mail.
See Chapter 10 in this book.
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CHAPTER 7 TRIAL PROCEEDINGS
2. The Jury Trial – Before Trial
For courts that conduct jury trials infrequently, it is recommended that a pretrial hearing be conducted to
ensure that the parties are in agreement on all possible issues and that the risk for procedural surprises
during the trial is minimal. This is especially true for jury trials involving pro se defendants that may not
understand trial processes.
Although many of the following can be done in court on the trial day, it provides a much smoother and
efficient flow of the trial if some of them have been done before the day of the trial. Under no
circumstances should the pretrial process be used as a tool to thwart or discourage a person from
exercising his or her constitutional right to a trial.
Coordination and agreement (or the court’s ruling) before the day of trial on trial-related issues may assist
in eliminating unnecessarily long delays for the jury panel.
Some judges prefer to prepare the jury charge in advance and allow both sides to comment and
recommend revisions. The judge, however, has the final decision on the wording. Both sides have a final
opportunity to make recommendations or state objections to the charge on the day of trial, but are less
likely to do so if given a previous opportunity to respond. Motions made on the day of trial cannot per se
be prohibited after the deadline date, but they can be denied unless good cause is shown for violating the
court’s order to file them more timely. Some motions must be ruled upon on the trial day, but some can be
decided in advance.
Checklist 7-2
Script/Notes
1. If a pretrial hearing was not held, the court may send a
“trial packet” to the prosecution and defense
containing:
a. Copy of complaint;
b. Copy of draft jury charge;
c. Date and time of trial; and
d. Notice setting the deadline for:
(1) Filing motions;
(2) Filing subpoena lists;
Both sides shall be notified if a
witness on the subpoena list
cannot be located or if
documents are not available.
(3) Filing objections to the complaint;
Challenges to the complaint
need not be considered unless
good cause is shown for
violating the court’s order to
file them timely.
(4) Filing recommendations, or
exceptions to the jury charge; and
(5) Requests for interpreter.
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(6) Other motions (including but not
limited to election of jury
punishment.)
2. Sign an order for the clerk to summon a sufficient
number of jurors for the type of case.
a. Consider summoning 30 to 40 persons for a
misdemeanor trial.
b. Prospective jurors may be randomly selected
from:
(1) Driver’s license records, if available;
(2) Utility records;
For a detailed discussion of
election and jury punishment,
see The Recorder 9:5, 3
(August 2000).
See TMCEC Forms Book:
Order to Summon Venire.
A written policy should be
developed and adopted by the
court that details the procedure
for jury selection (preparing
the jury candidate list,
summoning the prospective
jurors, etc.); the policy should
be on file and available for
inspection upon request.
(3) Tax rolls; and
(4) Voter registration rolls.
c. Prospective jurors must live within the city.
3. Court may reschedule prospective jurors to a later
date.
Sec. 62.501, G.C.
Tex. Atty. Gen. Op. GA-0161
(2004).
See TMCEC Forms Book:
Official Model Jury Summons
and Questionnaire; Jury
Service Cover Letter.
a. Clerk may postpone juror’s service.
Sec. 62.0142, G.C.
4. Unless the court’s criminal case records are accessible
on the internet, the clerk of the court is required to
post in a designated public place in the courthouse
notice of a criminal docket setting not less than 48
hours in advance.
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Art. 17.085, C.C.P.
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CHAPTER 7 TRIAL PROCEEDINGS
3. The Jury Trial –Trial Day
Checklist 7-3 begins with calling the jury. Please remember that the court must receive announcements
and explain procedures to the pro se defendant, even in a jury trial. Please review Chapters 3 and 4. These
actions should not take place in front of the jury. If the defendant waives a jury in writing or pleads guilty
and waives a jury in writing, the jury is not necessary.
Checklist 7-3
Script/Notes
1. Instruct the clerk of the court to prepare a jury list
containing the name of each juror in the order in
which he or she was chosen.
See TMCEC Forms Book: Jury
Panel List (Venire Panel).
2. Seat jurors in the order in which they were selected.
3. Distribute a copy of the numbered list of jurors to the
prosecutor and the defendant or defense counsel.
a. The judge may, at his or her discretion, ask
each attorney to read and sign an
admonishment against distributing juror
information contained on the juror
information cards to the media.
4. Verify that an absent juror has not established his or
her exemption by filing a signed statement with the
clerk of the court prior to the appearance date or been
given a postponement by the clerk.
a. If desired, set contempt hearings and issue
attachments for missing jurors not exempt.
Art. 35.11, C.C.P.
Art. 35.29, C.C.P.
Art. 35.04, C.C.P.
Sec. 62.0142, G.C.
Art. 45.027, C.C.P.
See Chapter 14 in this book,
concerning Contempt.
See TMCEC Forms Book:
Contempt for Failure to
Appear for Jury Service.
See TMCEC The Municipal
Judges Book: Chapter 5.
5. Opening ceremony and remarks
a. Opening announcements may be given by the
bailiff or court clerk.
6. Judge’s opening remarks
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“All rise! The Municipal Court
of the City of _____ is now in
session. The Honorable _____,
judge presiding.”
“Ladies and gentlemen, I want
to welcome you to the _____
Municipal Court. You have
been called for jury duty for
this (day/week). You will be
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examined for inclusion on a
jury hearing a criminal case.
Courtroom hours vary, but are
normally from 9:00 a.m. until
5:00 p.m.”
“Whether you are selected as a
juror today or not, you are
performing a significant
service that only free people
can perform. If you are
selected, the case will be tried
as expediently as possible
consistent with justice that
requires a careful and correct
trial.”
“If selected on the jury, unless
instructed otherwise, you will
be permitted to separate at
recess, for meals, and at night.”
7. The judge should administer the first jury oath to the
array.
Art. 35.02, C.C.P.
“Do each of you solemnly
swear that you will make true
answers to such questions as
may be propounded to you by
the court, or under its
directions, touching your
service and qualifications as a
juror (so help you God).”
“The law requires that each of
you must possess certain
qualifications before you may
be considered for service as a
juror.”
“There are also certain excuses
and exemptions that some of
you may wish to claim.”
8. Ask the array the questions shown to the right.
“Except for a failure to
register, are you a qualified
voter in this city, county, and
state under the Constitution
and laws of the state?”
“Have you ever been convicted
of theft or any felony?”
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“Are you under indictment or
legal accusation, or on deferred
adjudication for theft or any
felony?”
“Are you presently insane?”
Arts. 35.19 and 35.16(a)(4),
C.C.P.
“Are you 18 years of age or
older?”
“Are you a resident of the city
where this court is located?”
“Are you of sound mind and
good moral character?”
“Are you able to read and write
the English language?”
“Have you served as a petit
juror for six days in the
preceding three months in a
county court, or six days in the
preceding six months in a
district court?” Sec. 62.102(6),
G.C.
9. Immediately excuse any person whose answer to any
one of the above questions is inconsistent with the
statutory requirements.
Arts. 35.12, 35.16, and 35.19,
C.C.P.
10. Determine if anyone who is otherwise qualified to be
a juror wishes to claim one of the following legal
exemptions:
“You may claim any of the
following exemptions if you
choose to, but you are not
required to claim them.”
“If one of these applies to you,
but you still desire to be
considered as a juror, please
continue to remain seated.”
a. The person is over 70 years of age;
“Are you over 70 years of
age?”
b. The person has legal custody of a child under
the age of 15 years, and jury service would
leave the child or children without adequate
supervision;
“Do you have legal custody of
a child under the age of 15
years and service on a jury at
this time would result in the
child not receiving adequate
supervision?”
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c. The person is a student in a public or private
secondary school;
“Are you a student in a public
or private high school or
secondary school?”
d. The person is enrolled and in actual
attendance at an institution of higher
education;
“Are you enrolled and in actual
attendance at a college or
community college?”
e. The person is an officer or employee of the
senate, the house of representatives, or any
department, commission, board, office, or
other agency in the legislative branch of state
government;
“Are you an officer or
employee of the Senate, the
House of Representatives, or
any department, commission,
board, office, or other agency
in the legislative branch of
State government?”
f. The person is the primary caretaker of a
person who is an invalid unable to care for
himself or herself;
“Are any of you a primary
caretaker for an invalid who is
unable to care for himself or
herself?”
g. In counties with populations over 200,000, the
person has served on a petit jury in the county
in the last 24 month period preceding the
currently scheduled date for service, unless
the county uses a jury plan under Section
62.011, G.C., and the period authorized under
Section 62.011(b)(6), G.C., exceeds two
years;
Sec. 62.106(a)(6), G.C.
h. Unless the jury wheel in the county has been
reconstituted after the date the person served
as a petit juror, people in counties with a
population of at least 250,000 who have
served as a petit juror in the county during the
36 month period preceding the date the person
is to appear for jury service may claim an
exemption; or
Sec. 62.106(a)(8)-(b), G.C.
i. The person is a member of the U.S. military
on active duty deployed away from his or her
home station and county of residence.
Sec. 62.106(a)(9), G.C.
“Have you served on a petit
jury in this county in the last
24 to 36 months immediately
preceding today?”
“If any of these apply to you
and you do not desire to serve
as a juror, please come up to
the bench at this time.”
11. Hear the exemption and rule accordingly.
12. An exemption must be claimed in person on the date
of service, or before the date of service by filing a
signed statement of the ground for exemption with
the clerk of the court.
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Art. 35.04, C.C.P.
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13. Call forward any juror who wishes to be excused.
Art. 35.03, Sec. 1, C.C.P.
“If any of you feel there is a
reason why you cannot sit as a
juror today, please come up to
the bench now and I will hear
your excuse.”
14. The judge may accept or reject any “reasonable” or
“sufficient” excuse.
Art. 35.03, Sec. 1, C.C.P.
Sec. 62.110(a), G.C.
a. If an excuse is deemed sufficient, the juror
may be released, or his or her service may be
postponed to another date.
Art. 35.03, Sec. 1, C.C.P.
b. A juror may be excused for observance of a
religious holiday upon completing an affidavit
as required by Article 29.012(c), C.C.P.
Art. 35.03, Sec. 3, C.C.P.
15. A juror may not be excused for economic reasons
without the consent of the parties.
a. A juror who, without prompting, articulates
an inability to listen to testimony and be fair
and impartial may be excused.
16. Hear without delay any challenges to the array from
either party.
Sec. 62.110(c), G.C.
Butler v. State, 830 S.W.2d
125 (Tex. Crim. App. 1992).
Art. 35.07, C.C.P.
“Array” is a term meaning the
jury panel as a whole.
a. The only ground for challenge is that the
summoning officer has willfully summoned
jurors with a view to securing a conviction or
an acquittal.
b. The challenge must be in writing and must set
forth the grounds for challenging.
c. When made by the defendant, it must be
supported by his or her affidavit or the
affidavit of any credible person.
17. If the challenge is sustained:
Art. 35.08, C.C.P.
a. Discharge the array;
b. Order a new array summoned;
c. Prohibit the person who summoned or
composed the array to bring another array in
the case; and
d. Have another array brought to the courtroom.
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It may be prudent to reschedule
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the trial to allow sufficient time
to summon another array in an
orderly manner. Discuss the
new trial date with both parties
and seek consensus for the new
date.
18. After the array is qualified, the prosecutor and
defendant or defendant’s attorney should be
permitted to view them for purposes of requesting a
jury shuffle.
Put simply, a “jury shuffle”
occurs when one of the parties
does not like the order in which
the jury is seated and wants the
panel reseated in a new order.
A simple way to do this is to
write each juror’s name on a
card, place the cards in a
container and mix them up
(shuffle) and randomly draw
out each card in sequence. The
first name drawn is now juror
number one; the second name
is juror number two, etc., until
all names are drawn. The clerk
will prepare the new juror list
and they will be re-seated in
the order drawn.
19. The trial judge, on motion of the defendant or his or
her attorney, or of the State’s attorney shall cause the
names of the jurors to be randomly shuffled. The
clerk shall deliver a copy of the new juror list to the
State’s attorney and to the defendant or his or her
attorney.
Only one shuffle is permissible by law.
Williams v. State, 719 S.W.2d
573 (Tex. Crim. App. 1986).
20. The motion must be made before the State’s voir dire
begins.
21. After a jury shuffle, seat the panel in the order their
names were drawn.
22. Seating the panel:
a. After considering and determining
qualifications, exemptions, and excuses, the
remaining jurors should be seated. The panel
at this stage should consist of no fewer than
12 persons. This will allow the prosecution
and the defense to exercise three strikes each
and still have at least six persons available to
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Art. 33.01, C.C.P.
Art. 45.029, C.C.P.
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serve on the jury.
b. There is no authority for the selection of
alternate jurors in municipal court cases.
23. Announcement of the case and introductions
a. Introduce yourself.
Art. 33.011, C.C.P.
“Good morning. My name is
_____, and I am the Judge of
the _____ Municipal Court. I
will be presiding over this
trial.”
b. Call the case.
“At this time, I call the State of
Texas vs. _____. What says the
State? And the Defense?
Ladies and gentlemen, allow
me to introduce the lawyers in
this case.”
c. Introduce lawyers.
“Representing the State in this
matter is (title of state’s
attorney), Mr(s). _____;
representing the defendant is
Mr(s). _____.” If the defendant
is representing himself or
herself, see Chapter 3 in this
book.
d. Introduce defendant.
“This is a criminal case. It will
be tried before six of you
selected as the jury. As jurors,
it is your exclusive duty to
decide all questions of fact in
this case, and, for that purpose,
to determine the effect, the
value, and the weight of the
evidence. The evidence in this
case will be the testimony you
receive and hear from the
witness stand and from that
place only.”
“You will not be called upon to
decide questions of law. It is
my duty as judge to rule upon
legal matters and to see that
this case is tried in accordance
with the rules of law.”
“Both the defendant and the
people of this state have a right
to expect that you will
conscientiously consider and
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weigh the evidence, apply the
law given you to that evidence,
and that you will reach a just
verdict.”
“In this case, as in all cases, the
actions of us all – the judge,
the attorneys, the witnesses,
parties, and jurors – must be
according to law: You must
therefore follow all instructions
given you, as well as others
received as the case
progresses.”
24. Preliminary instructions
a. These are the court’s instructions to each juror
to follow throughout the trial.
“Do not mingle with, nor talk
to, the lawyers, the witnesses,
the parties, or any other person
who might be connected with
or interested in this case,
except of course, for casual
greetings. They must follow
these same instructions, and
you will understand it when
they do.”
“Do not accept from, nor give
to, any of those persons any
favors, however slight, such as
food, refreshments, or
cigarettes.”
“Do not discuss anything about
this case, nor mention it to
anyone, nor permit anyone to
mention it in your presence,
until you are discharged as
jurors or excused from this
case. If anyone attempts to
discuss the case with you,
report it to me immediately.”
“The parties, through their
attorneys, have the right to
direct questions to each of you
concerning your qualifications,
background, attitudes, and
experiences.”
“In so questioning, they are not
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prying into your personal
affairs, but are trying to select
fair and impartial jurors who
will be free from bias or
prejudice in this case. If you
are selected to serve as a juror,
you will be permitted to
separate at recesses, unless
otherwise instructed by me.
Consistent with justice, we will
try this case as expediently as
possible, but justice requires a
careful and correct trial.”
25. The judge, at his or her discretion, may choose to
voir dire the jury at this time on general principles of
law and the practice and procedure of the court, or
permit the prosecutor and the defense to voir dire.
The prosecutor has the right to conduct voir dire first,
the defense second.
The court will proceed into
what is called voir dire
(questioning under oath).
26. Opening voir dire remarks
“Ladies and gentlemen of the
jury panel: The case about to
be tried is Cause Number
_____, styled The State of
Texas vs. (Defendant), who is
charged by (complaint) with the
offense of (name of offense). The
range of punishment provided
for by law for this offense is a
fine between $____ and
$____.” [In addition, identify
other sanctions, if any, that
apply upon conviction, such as:
community service hours,
attendance at an education
course, etc.]
“As the jury panel, you have
been seated in the order in
which your names were
selected using a purely random
process. This is done purposely
so that no one can “stack” or in
any way manipulate who may
sit as a juror on any particular
case.”
“Some of you may be
eliminated because of
disqualification.”
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“For those that remain, each
side will have three peremptory
challenges. Peremptory strikes
may be exercised for any
lawful reason. A peremptory
strike removes a name from the
list of potential jurors. Each
side also has an unlimited
number of strikes based upon a
variety of legal reasons. The
first six names remaining after
all the strikes have been made
will form the jury for this
case.”
27. Explain the jury’s function and the role of the judge.
“It is the function of the jury to
determine the facts. In doing
so, you are the sole and
exclusive judge of the
credibility of the witnesses and
the weight to be given their
testimony. Even I, as the judge,
am not permitted to influence
your evaluation through words
or actions during the trial. My
job is to decide the law and to
be certain that both sides
receive a fair trial. When I rule
on the admissibility of
evidence, or hear other
objections, I am not indicating
my personal feelings for one
side or the other, but simply
applying rules of law
established by the legislature
that govern this trial.”
“There are a few general
principles of law that I would
like to review with you at this
time.”
28. Explain who has the burden of proof in a criminal
trial.
“The burden of proof in this
case rests solely upon the State.
The prosecutor must prove
each and every element of the
offense beyond a reasonable
doubt.”
29. Explain the presumption of innocence and touch
upon the concept of beyond a reasonable doubt.
“The defendant is presumed to
be innocent until guilt is
established by legal evidence,
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received before you in the trial
of this case, beyond a
reasonable doubt. If, after you
retire to deliberate, each of you
believes beyond a reasonable
doubt that the defendant is
guilty of the offense charged, it
will be your duty to return a
verdict of ‘Guilty.’ If you have
a reasonable doubt as to the
guilt of the defendant, it will be
your duty to return a verdict of
‘Not Guilty.’”
30. Explain that the defendant is not required to testify in
a criminal trial.
“The defendant in any criminal
case is not required to prove
himself or herself innocent. If
the defendant does not choose
to testify, you may not
consider that fact as evidence
of guilt, nor may you, in your
deliberations, comment or in
any way allude to that fact.”
31. Explain the purpose of a complaint or citation in a
criminal trial.
“The ( complaint/citation ) in this
case is not an indication of the
guilt of the defendant. It is
simply the legal means by
which a person in Texas is
brought to trial in municipal
court.”
32. Emphasize the importance of a fair trial.
“The defendant, the prosecutor,
the public, and our system of
justice, all require that a fair
jury, one without bias or
prejudice, and free of opinion
as to the guilt or innocence of
the defendant, be chosen here
today. A fair jury is one that,
not having heard any of the
evidence, is not committed to
either side. A fair jury is one
that is impartial to both sides
and that can and will follow the
law as given to it by this
court.”
33. Explain why the attorneys for each side, or the
defendant, if pro se, will question them.
“In a moment, the attorneys for
each side are going to ask each
of you some questions. These
questions are not meant to pry
into your personal affairs, or
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those of your family. The
questions are designed to
determine if you can be a fair
juror, or whether any bias or
prejudice you may have about
the law in this case or the facts
as they may be presented to
you, will prevent you from
following your oath as a juror.”
34. Allow prosecutor to proceed with his or her voir dire.
After prosecutor has finished with voir dire, allow
defense to proceed with voir dire.
35. After voir dire is completed, allow prosecutor and
defense to exercise their peremptory challenges.
a. The prosecutor and the defense may each
exercise as many as three strikes (that is, ask
that a potential juror be excused) without
having to explain why the strikes were made
unless a Batson challenge is raised.
Art. 35.25, C.C.P.
Art. 45.029, C.C.P.
b. Each side takes its jury list supplied by the
court and marks through as many as three
names.
c. The two lists are returned to the clerk, who
makes a list of the first six names that have
not been marked through. Those six persons
then take their position in the jury box. The
clerk delivers the original list to the judge and
gives a copy of the list of six jurors to both
the prosecutor and the defendant or the
defendant’s attorney.
Art. 33.01, C.C.P.
It is good practice for the judge
to compare the attorney’s
strikes with the juror list
prepared by the clerk to assure
accuracy. The judge will then
direct the clerk to prepare the
juror list and make a copy for
each side.
For instructions for a “pickup
jury,” see Art. 45.028, C.C.P.,
and TMCEC Forms Book:
Other Jurors Summoned
(“Pickup Jury”).
36. Seat and administer oath to jury at the conclusion of
the voir dire proceedings.
If there is a Batson challenge,
see Checklist 7-4.
37. Give oath and preliminary instructions to jury at
conclusion of voir dire.
“Members of the jury, will you
please stand, raise your right
hand, and be sworn.”
a. Oath
Art. 35.22, C.C.P.
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“Each of you do solemnly
swear that in the case of the
State of Texas against the
defendant, you will a true
verdict render according to the
law and the evidence (so help
you God).”
b. Preliminary instructions
“You may be seated. Ladies
and gentlemen of the jury, by
that oath which you took as
jurors, you have become
officials of this court and
active participants in the public
administration of justice. It is
your duty to listen to and
consider the evidence and law
in this case and to obey all
instructions given you.”
“As an additional instruction, I
now instruct you not to discuss
this case among yourselves
until after you have heard all
the evidence and the attorney’s
arguments, and until I have
sent you to the jury room to
deliberate and consider your
verdict.”
“Ladies and gentlemen, we are
now ready to proceed.”
38. Explain how the trial will proceed.
“The trial will proceed as
follows:”
“The prosecutor may make an
opening statement;”
“The defense attorney/
defendant may do so as well,
or at a later time;”
“The prosecutor will then offer
evidence through witnesses;”
and
“The defense attorney/
defendant may cross-examine
each witness.”
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“When the prosecutor has
finished presenting the State’s
case, the defense
attorney/defendant may or may
not present his or her
evidence.”
“The defendant is never
required to prove his or her
innocence.”
“The prosecutor may crossexamine each defense witness,
if any.”
“When the defense is finished
presenting its witnesses, the
prosecutor may put on rebuttal
witnesses, and the defense may
then do the same.”
“After the prosecution and the
defense have presented their
cases, we will hear closing
arguments.”
39. Have prosecutor read complaint; take defendant’s
plea.
a. Prosecutor reads complaint, unless defendant
waives the right to have the complaint read
aloud.
Art. 36.01, C.C.P.
b. The defendant then enters a plea of:
Art. 45.023, C.C.P.
(1) Guilty;
(2) Nolo contendere (no contest); or
(3) Not guilty.
c. If the defendant refuses to enter a plea, the
court must enter a plea of not guilty for the
defendant.
Art. 45.024, C.C.P.
(1) If the defendant pleads guilty or nolo
contendere, then the court
determines the punishment.
Art. 45.022, C.C.P.
(2) The defendant in a misdemeanor
case may be absent and appear by
counsel with the consent of the State.
Art. 33.04, C.C.P.
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The prosecuting attorney has
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unrestricted discretion in
consenting to defendant’s
absence in a jury trial.
40. Place witnesses under “The Rule.”
a. At the request of either the defense or
prosecution, or on the judge’s own motion,
the judge may prevent witnesses from hearing
the testimony of other witnesses.
b. Determine all witnesses.
c. Give oath to witnesses.
“All those of you who may be
witnesses in this case who are
in the courtroom, please stand
and raise your right hand.”
“Do you solemnly swear or
affirm that the testimony that
you are about to give in the
case now on trial is the truth,
the whole truth, and nothing
but the truth (so help you
God)?”
d. Instruct the witness in the language of “The
Rule.”
e. Before a victim, close relative of a victim, or a
guardian of a victim can be excluded under
“The Rule,” the moving party must show, and
the court must determine that:
(1) The victim (or relative or guardian)
will testify; and
(2) The testimony of the witness/victim
would be materially affected if the
witness/victim is not excluded under
“The Rule.”
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Rule 613 of the Rules of
Evidence.
“Ladies and gentlemen, ‘The
Rule’ has been invoked.’ The
Rule’ means that the witnesses
who are not parties to this case
must remain outside the
hearing of the courtroom at all
times while testimony is being
heard, except when testifying
or until discharged. If you are a
witness, you must stay close
enough so that you may be
reached when needed. You
must not discuss this case
among yourselves or allow it to
be discussed in your presence
except in the presence of your
attorney and under the orders
of the court. You must not read
any report, newspaper article,
correspondence, or comment
on the testimony in the case
while you are under ‘The
Rule.’ Please remain outside
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until called.”
f. If either side asks the judge to make an
exception for a particular witness (for
example, an expert witness), the judge may
grant the exception if determining that the
witness’ testimony will not be tainted or
influenced if that person is allowed to remain
in the courtroom during the trial and to hear
the testimony of the other witnesses in the
case.
41. Opening statements:
Art. 36.01, C.C.P.
a. Prosecution first.
b. Defense second or may reserve opening
statement until after the State rests its case-inchief.
c. Should the prosecution waive its opening
statement, the defense may not make an
opening statement until the prosecution
concludes its case-in-chief.
42. Presentation of evidence.
Art. 36.01, C.C.P.
a. Prosecution’s case-in-chief
(1) State’s direct evidence.
(2) Defendant’s cross-examination.
(3) State’s redirect examination, if any.
(4) Defendant’s recross-examination, if
any.
b. State rests.
43. Motion for directed verdict
Art. 45.032, C.C.P.
a. At this point, the defense is permitted to bring
a motion for directed verdict of acquittal. The
motion is based upon the belief of the defense
that the State has failed to bring up some
evidence on an element of the offense.
b. If the court believes that the defense is
correct, the judge should instruct the jury to
return a verdict of not guilty.
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(1) Granting the motion has the same
practical effect of ending the trial in
an acquittal. Overruling the motion
results in a continuation of the trial,
and the defense would then be
allowed to present its case.
44. Defendant’s case:
Art. 36.01, C.C.P.
a. Defendant’s direct examination
b. State’s cross-examination
c. Defendant’s redirect examination, if any
d. State’s recross-examination, if any
45. Rebuttal evidence.
a. The prosecution may present rebuttal
evidence in the same manner as the
prosecution’s case-in-chief.
.
46. Prosecution closes.
a. If the State presents more evidence, the
defense may present more evidence if it
chooses.
47. Defense closes.
48. You must give the jury a charge on the law that
applies to the case. The charges may be made orally
or in writing, except that the charge must be in
writing if required by law. Municipal courts of record
are required to have a written jury charge. The jury
charge must be given before closing arguments.
Art. 45.033, C.C.P.
49. Read the charge to the jury. Do not comment or
Art. 36.14, C.C.P.
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A written charge is preferred
by most judges to avoid
objections to the oral charge
being made in front of the jury.
Some judges prepare the
charge in advance and provide
a copy to the defense and the
prosecution for review and
objection prior to the trial. This
avoids having to review and
possibly revise the charge at
trial while the jury and others
wait. The final version is
provided to the prosecution and
defense at the trial.
See Checklist 7-6.
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communicate your views regarding the instructions
given by changes in your voice or facial expressions.
“At this time, ladies and
gentlemen, I will read to you
the charge of the court
containing the law applicable
to this case. In continuing to
discharge your responsibilities
as jurors, you will continue to
observe all the instructions that
have previously been given to
you. These instructions are
given to you because your
conduct is subject to review the
same as that of the witnesses,
parties, attorneys, and myself.
If it should be found that you
have disregarded any of these
instructions, it will be jury
misconduct and it may require
another trial by another jury.”
“If any of you observe one or
more of your group violating
any of my instructions, you
shall immediately warn the
violator and caution him or her
not to do so again.”
“Please listen carefully as I
read the charge to you. The
original will be placed on the
table in the jury room when
you retire to begin your
deliberations.”
See Checklist 7-6 on preparing
a jury charge.
50. Closing arguments:
Arts. 36.07 and 36.08, C.C.P.
a. Prosecution argues first (may waive).
b. Defense makes its argument.
c. Prosecution has the right to argue last.
51. Submit case to the jury for deliberations.
Both sides are allotted equal
time for closing arguments. If
the prosecution chooses to
divide their argument, they do
not receive additional time.
Art. 36.16, C.C.P.
a. Instruct the jury.
“You must appoint a presiding
juror.”
(1) Provide the jury with:
“The verdict must be
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(a) Jury charge;
unanimous.”
(b) Jury instructions; and
“If you find the defendant
guilty, you must assess a fine.
In setting a fine, you must not
compromise or set the fine by
chance. It must be an amount
set by the free opinion of each
individual juror within the
range allowed by law.”
(c) Verdict forms.
b. Instruct the jury to assess a fine if they find
the defendant guilty of the offense. (This
instruction is given only if the defendant
elected to have the jury assess punishment.)
c. If the defendant did not elect the jury to
determine punishment, instruct the jury to
only render a verdict of “Not Guilty” or
“Guilty.”
(1) If verdict is “Guilty,” you will assess
a fine.
“If you find the State did not
prove each element of its case
and the guilt of the defendant
beyond a reasonable doubt,
you must return a verdict of
‘Not Guilty’.”
“You will be provided forms to
reflect a verdict of either not
guilty or guilty. After you have
reached your verdict, the
presiding juror will complete
the appropriate form, sign the
form, and notify the bailiff a
verdict has been reached.”
“Any communication between
the jury and court must be in
writing and transmitted by the
bailiff.”
“If you cannot reach a verdict
within a reasonable time,
notify the bailiff of your
difficulty or problem.”
See TMCEC Forms Book:
Verdicts.
52. The verdict.
Art. 45.036, C.C.P.
a. The judge should see that the verdict is in the
proper form (if guilty, the verdict should
include assessment of punishment).
b. Read the verdict in open court.
c. Enter the verdict on your docket.
Art. 45.017, C.C.P.
(1) If the jury is deadlocked, give an
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See Checklist 7-5(5).
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Allen Charge.
(2) If a verdict cannot be reached and it
is improbable that an agreement can
be reached, the jury should be
discharged and the case tried again.
53. Poll jury on request of prosecution or defense.
Art. 37.05, C.C.P.
54. Discharge jury.
See Chapter 8 in this book.
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CHAPTER 7 TRIAL PROCEEDINGS
4. The Jury Trial – Batson Challenges
Checklist 7-4
Notes
1. Hold a hearing upon a timely, specific objection or
motion, written or oral, by either the State or the
defendant, that the opposing party made a peremptory
strike based upon:
The Code of Criminal
Procedure provides relief only
to the defendant, but federal
courts have expanded the right
to challenge to the State.
a. Race; or
Art. 35.261(a), C.C.P.; Batson
v. Kentucky, 106 S.Ct. 1712
(1986); Georgia v. McCollum,
112 S.Ct. 2348 (1993).
b. Gender.
J.E.B. v. Alabama ex rel T.B.,
511 U.S. 127 (1994).
2. The motion is timely so long as it is made before the
jury is impaneled and sworn.
Hill v. State, 827 S.W.2d 860
(Tex. Crim. App. 1992).
3. Subsequent proceedings are public and should be held
in the courtroom.
Salazar v. State, 795 S.W.2d
187 (Tex. Crim. App. 1990).
4. Administer the witness oath to both the prosecutor and
defense attorney.
5. A prima facie case of racial or gender-based
discrimination consists of a showing that the opposing
party:
a. Struck all venire members of the same race or
gender; or
Salazar v. State, 795 S.W.2d
187 (Tex. Crim. App. 1990).
b. Struck a disproportionate number of venire
members of one race or gender.
Linscomb v. State, 829 S.W.2d
164 (Tex. Crim. App. 1992).
6. The party against whom the objection or motion is
made is then permitted to offer a reasonable race or
gender-neutral explanation for the strike(s).
7. If the party against whom the objection or motion is
made fails to offer a reasonable race or gender-neutral
reason, the objecting party’s burden is met.
Williams v. State, 767 S.W.2d
872 (Tex. App.—Dallas 1989,
pet. ref’d).
8. If the party against whom the objection or motion is
made offers a reasonable race or gender-neutral
explanation, the objecting party has the burden of
persuading the judge by a preponderance of the
evidence that the allegations of purposeful
Tompkins v. State, 774 S.W.2d
195 (Tex. Crim. App. 1987).
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discrimination are true.
a. The objecting party may call witnesses,
including opposing counsel.
Williams v. State, 767 S.W.2d
872 (Tex. App.—Dallas 1989).
b. The objecting party’s counsel is entitled to
examine opposing counsel’s notes for
purposes of cross-examination.
Salazar v. State, 795 S.W.2d
187 (Tex. Crim. App. 1990).
c. Objecting counsel may also testify as to what
occurred during voir dire.
Prosper v. State, 788 S.W.2d
625 (Tex. App.—Houston
[14th] 1990).
9. The trial judge must evaluate the reasons given in
light of the circumstances of the trial and decide
whether the explanations are valid or a pretext.
a. In reviewing the rationale for strikes, the
judge should look at:
(1) Reasons given not related to facts
given;
(2) Lack of questions or meaningful
questions;
(3) Disparate treatment of prospective
jurors;
(4) Disparate questioning to exclude
jurors; and
(5) Bias toward a group or profession
where the trait is not shown to apply.
b. Reasons held to be racially neutral include but
are not limited to:
(1) Juror has family members with
criminal problems;
(2) Juror has family member in the
penitentiary;
(3) Juror knows defendant or his or her
family;
(4) Juror has a criminal history;
(5) Juror previously served on a hung
jury; and
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(6) Juror previously served on a jury that
acquitted.
10. The judge should, but is not required to, make
findings of fact and conclusions of law.
Lewis v. State, 779 S.W.2d 449
(Tex. App.—Tyler 1989, pet.
ref’d).
11. If purposeful discrimination is found, the judge is not
required to dismiss the venire, call another, and begin
jury selection again. The judge may fashion any
remedy he or she deems appropriate consistent with
Batson, and its progeny.
State ex rel Curry v. Bowman,
885 S.W.2d. 421 (Tex. Crim.
App. 1993).
a. Consider, for example:
(1) Following Article 35.261, C.C.P.; or
(2) Seating the struck venire person.
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CHAPTER 7 TRIAL PROCEEDINGS
5. The Jury Trial – Jury Deliberation
Checklist 7-5
Script/Notes
1. Have the bailiff ensure that the jury room is ready and
equipped with chairs, pencils, writing pads, etc.
2. Remand jurors to the bailiff and instruct jurors that
they are to follow the bailiff’s instructions when not in
the jury room.
3. The jury should be advised by the bailiff where he or
she will be stationed should he or she be needed.
4. Jury questions during deliberation:
a. If jury communicates with court in writing,
use reasonable diligence to secure presence of
defendant, defense counsel, and prosecutor.
Art. 36.28, C.C.P.; Brown v. State,
870 S.W.2d 53 (Tex. Crim. App.
1994); Moore v. State, 874 S.W.2d
671 (Tex. Crim. App. 1994).
b. Show question and proposed answer to
defendant and both counsel for objections or
exceptions.
c. If unable to secure presence of defendant and
both counsel, answer appropriately.
d. Read written answer in open court unless
defendant expressly waives.
e. If the jury disagrees as to the testimony of a
witness, have read back to them the specific
portion in dispute.
f. If there are no court reporter notes, the
witness may be recalled to repeat testimony
only as to the point in dispute.
5. If the jury is deadlocked and cannot reach a verdict,
the court may give an “Allen Charge” or “Dynamite
Charge.”
a. Read the charge to the jury and give the
charge to them in writing to take to the jury
room along with the original instructions.
An "Allen" charge is one given to a
deadlocked jury which indicates to a
juror that some deference is owed to
the opinion of the majority of the
other jurors. Allen v. United States,
164 U.S. 492 (1896).
“While undoubtedly, members of
the jury, the verdict of a jury should
represent the opinion of each
individual juror, it by no means
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follows that opinions may not be
changed by conference in the jury
room. The very object of the jury
system is to secure unanimity by
comparison of views and by
arguments among the jurors
themselves. Every juror should
listen with deference to the
arguments of the other jurors, and
with a distrust of his or her own
judgment if he or she finds the
larger majority of the jury takes a
different view of the case than that
which he or she takes. No juror
should go to the jury room with a
blind determination that the verdict
should represent his or her opinion
of the case at that moment or that he
or she should close his or her eyes
to the arguments of the other jurors,
who are equally honest and
intelligent.”
“So I charge that although the law
requires the considered verdict of
each individual juror and not a mere
acquiescence in the conclusion of
his or her fellows, you should
examine the questions submitted
with candor and with a proper
regard and deference to the opinions
of each other.”
“Now, it is your duty to decide this
case, if you can conscientiously do
so. No juror is expected to do
violence to his or her own
conscience. You should listen with
a disposition to be convinced of
each other’s arguments. If a much
larger number are for conviction, a
dissenting juror should consider
whether his or her doubt is a
reasonable doubt, which made no
impression upon the minds of so
many men or women equally honest
and intelligent as himself or
herself.”
“If, on the other hand, a majority of
you are for acquittal, the minority
ought to ask themselves whether
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they might not reasonably doubt the
correctness of a judgment which
was not concurred in by the
majority.”
“Having given you these additional
instructions, it is my hope that you
will return to the jury room and
endeavor to reach a verdict. And
with these instructions in mind, I am
now going to ask you to return to
the jury room and consider further
your verdict.”
6. If a verdict is returned, read in open court.
7. Poll the jury on request of prosecution or defense.
Art. 37.05, C.C.P.
8. If jury cannot agree, it may be discharged:
Art. 36.31, C.C.P.
a. When both parties consent to its discharge; or
b. When the court believes that the jury has been
kept together for such time as to render it
altogether improbable that it can agree.
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CHAPTER 7 TRIAL PROCEEDINGS
6. The Jury Trial – Jury Charge
Checklist 7-6
Script/Notes
1. The judge must charge the jury before either the
defense or prosecution presents closing arguments.
The charge may be made orally or in writing.
However, the charge must be in writing if required by
law.
Art. 45.033, C.C.P.
A written jury charge is specifically
required in municipal courts of
record. Art. 36.14, C.C.P.
a. Delete any allegations of alternative means of
committing the offense for which no evidence
was presented.
b. Obtain a copy of the complaint and statute or
ordinance alleged to be violated.
c. Request submission of any specially requested
charges by the parties and make a ruling on
each.
Art. 36.14, C.C.P.
d. Give each party a reasonable time to inspect
and object to the charge intended to be given.
Art. 36.14, C.C.P.
2. Caption
CAUSE NUMBER ____________
a. Insert the:
THE STATE OF TEXAS
(1) Case number;
§
§
§
§
(2) Court; and
IN THE MUNICIPAL
COURT OF
(City)
(County) , TEXAS
(3) Defendant’s name.
CHARGE TO THE JURY
3. Commencement
MEMBERS OF THE JURY:
a. Insert the:
The defendant, (name as appearing on
is charged with the
offense of ______________ alleged
to have been committed in the City
of (municipality), (county), Texas, on or
about the ____ day of _______,
20__. To this charge the defendant
has pled not guilty. You are
instructed that the law applicable to
this case is as follows:
the complaint),
(1) Name of the offense;
(2) Name of the city;
(3) Date of the offense; and
(4) Defendant’s plea.
4. Abstract Charge
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a. Describe the offense as specifically as
possible from the statute and complaint.
b. Consider quoting verbatim actual statutory
language applicable.
E.g., A person commits the offense
of assault if the person intentionally
or knowingly causes physical
contact with another when the
person knows or should reasonably
believe that the other will regard the
contact as offensive or provocative.
5. Definitions
a. Define the culpable mental state, if any.
E.g., A person acts intentionally or
with intent, with respect to the
nature of his or her conduct or to a
result of his or her conduct, when it
is his or her conscious objective or
desire to engage in the conduct or
cause the result.
b. Define any terms which are defined in the
code or statute.
c. Reasonable Doubt
The six paragraphs previously
required by Geesa v. State, 820
S.W.2d 154 (Tex. Crim. App. 1991)
are no longer required under the
holding of Paulson v. State, 28
S.W.3d 570 (Tex. Crim. App.
2000). If both sides agree, it can be
included but, if either objects, its
inclusion is error.
6. Application Paragraph
a. Incorporate complaint or statutory language to
include all elements of offense.
b. Delete any manner or means of committing
the offense not supported by evidence.
c. Change conjunctive pleadings (“and”) to
disjunctive (“or”) where applicable.
d. Apply law without commenting on weight of
evidence.
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Therefore, if you believe from
the evidence beyond a reasonable
doubt that the defendant, ( name of
defendant ), on or about ( date alleged in
the complaint ), in the City of
________, Texas, did then and there
intentionally or knowingly cause
physical contact with ( name of
victim/complainant ), by ( set out facts
alleged in complaint ), when the
defendant knew or should have
reasonably believed that the said
( name of victim/ complainant ) would
regard the contact as offensive or
provocative, you will find the
defendant guilty of the offense of
assault by contact.
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7. Converse Charge
But if you do not so believe or if
you have a reasonable doubt
thereof, you will acquit the
defendant and say by your verdict
not guilty.
a. Insert the converse charge.
8. Evidentiary Instructions
a. If evidence has been admitted for a limited
purpose such as to impeach a witness, add an
instruction to limit the jury’s consideration to
the purpose for which it was offered.
b. If there is a fact issue as to admissibility of
evidence or a confession because of illegality
in the way it was obtained, submit it to the
jury if requested by the defendant.
E.g., You are instructed that certain
evidence was admitted before you in
regard to the defendant having been
charged and convicted of an offense
or offenses, other than the one for
which the defendant is now on trial.
Such evidence cannot be considered
by you against the defendant as any
evidence of guilt in this case. The
evidence was admitted for the
purpose of aiding you, if it does, in
passing upon the credibility of the
defendant as a witness in this case,
and to aid you, if it does, in deciding
on the weight you will give to the
defendant’s testimony, and you will
not consider it for any other
purpose.
Arts. 38.22 and 38.23, C.C.P.
9. Defenses
a. If evidence from any source raises a defense,
instruct jury on the law and the requirement to
acquit if the State fails to disprove it beyond a
reasonable doubt.
b. If evidence from any source raises an
affirmative defense, instruct the jury on the
law and the requirement to acquit if defendant
proves it by a preponderance of the evidence.
10. Presumptions
a. Add any evidentiary presumption authorized
by law.
The jury is instructed relative to this
presumption:
b. Include the general instructions relating to
presumptions found in Section 2.05, P.C.
(1) that the facts giving rise to the
presumption must be proven beyond
a reasonable doubt;
(2) that if such facts are proven
beyond a reasonable doubt the jury
may find that the element of the
offense sought to be presumed
exists, but it is not bound to so find;
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(3) that even though the jury may
find the existence of such element,
the State must prove beyond a
reasonable doubt each of the other
elements of the offense charged; and
(4) that if the jury has a reasonable
doubt as to the existence of a fact or
facts giving rise to the presumption,
the presumption fails and the jury
shall not consider the presumption
for any purpose.
11. Range of Punishment
a. Instruct on the range of punishment for every
offense if defendant elected jury to assess
punishment.
An individual adjudged guilty of
_______ shall be punished by a fine
not to exceed _____ dollars [or] by
a fine of not less than $________
nor more than $__________.
Therefore, if you find the defendant
guilty you shall access punishment
by a fine not to exceed _____
dollars [and not less than
$_______].
12. General Instructions
a. Add general instructions.
“You are instructed that the criminal
complaint is not evidence of guilt. It
is the means whereby a defendant is
brought to trial in a misdemeanor
prosecution. It is not evidence, nor
can it be considered by you in
passing upon the innocence or guilt
of this defendant.”
“During your deliberations in this
case, you must not consider, discuss
or relate any matters not in evidence
before you. You should not consider
or mention any personal knowledge
or information you may have about
any fact or person connected with
this case which is not shown by the
evidence.”
“After you have retired to your jury
room, you should select one of your
members as your presiding juror. It
is his or her duty to preside at your
deliberations, vote with you, and
when you have unanimously agreed
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upon a verdict, to certify to your
verdict by signing the same as
presiding juror.”
“You are the exclusive judges of the
facts proved, of the credibility of the
witnesses, and of the weight to be
given to the evidence, but you are
bound to receive the law from the
court, which is herein given to you,
and be governed thereby.”
b. If the defendant elected that the jury assess
punishment, explain how to arrive at
punishment.
“A form for your verdict is attached;
your verdict must be in writing and
signed by your presiding juror. In
deliberating on the punishment in
this case, you must not refer to or
discuss any matter not in evidence
before you. You must not arrive at
the punishment to be assessed by
any lot or chance, or by putting
down any figures or doing any
dividing.”
“Your verdict must be unanimous.”
“You are the exclusive judges of the
facts proved, of the credibility of the
witnesses and of the weight to be
given to their testimony, but you are
bound to receive the law from the
court which is herein given you, and
be governed thereby.”
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13. Verdict form:
CAUSE NUMBER ____________
a. Prepare the verdict form on a separate page
and include it with the charge.
THE STATE OF TEXAS
§
§
§
IN THE MUNICIPAL
COURT OF
City
)
(
( County ), TEXAS
VERDICT
(Choose one of the following)
We, the Jury, find the defendant not
guilty.
___________________
Presiding Juror
b. If defendant elected to have the jury assess
punishment, include a punishment section on
verdict form.
We, the Jury, find the defendant
guilty, and assess a fine of $
____________.
___________________
Presiding Juror
14. Submission of Main Charge.
a. Give each party a copy of the charge and
allow them a reasonable amount of time to
review it.
See TMCEC Forms Book: Verdict –
Jury Punishment.
Art. 36.14, C.C.P.
15. Objections to the Main Charge.
a. Allow each party to make objections to the
charge.
16. Make any needed changes to the charge.
a. Do not indicate in the charge which party
requested the instruction.
17. Read the charge to the jury.
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CHAPTER 7 TRIAL PROCEEDINGS
7. The Jury Trial - Master Checklist
Checklist 7-7
Script/Notes
1. Defendant requests trial by jury (or refuses to waive
right to trial by jury in writing).
2. Set pretrial hearing date or trial date if no
pretrial hearing.
See Chapter 6 in this book.
3. Issue orders to summon jury panel.
4. Call case for announcements and admonishments to
defendant.
5. Qualify and swear the central jury panel, if a central
jury panel system is used.
6. Swear the jury panel.
7. Qualify the jury panel.
8. Seat the panel in the courtroom.
a. Shuffle the panel if either side requests it. Only
one shuffle permitted.
9. If requested by either party, order the official court
reporter to transcribe the voir dire. (Only applicable
for courts of record.)
10. Introductions and administration of the juror oath
11. Opening remarks by the court
12. Permit the prosecutor to voir dire the panel.
13. Permit the defendant or, if represented by counsel,
the defendant’s attorney to voir dire the panel.
14. Direct the parties to make their peremptory strikes
(rule on challenges for cause, if any).
15. The jury is the first six of those left.
16. If requested, hold a hearing on the discriminatory use
of peremptory challenges.
17. Seat the jury and administer the oath.
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18. Take defendant’s plea.
19. At the request of either the defense or prosecution,
or on your own motion, you should determine
all possible witnesses.
a. Invoke “The Rule” if requested.
20. Opening statements:
a. Prosecution first.
b. Defense second, but may reserve opening
statement until after the State rests its casein-chief.
c. Should the prosecution waive its opening
statement, the defense may not make an
opening statement until the prosecution
concludes its case-in-chief.
21. Prosecution’s case-in-chief:
a. State’s direct evidence.
b. Defendant’s cross-examination.
c. State’s redirect examination, if any.
d. Defendant’s recross-examination, if any.
e. State rests.
22. Motion for directed verdict.
Art. 45.032, C.C.P.
a. If the state fails to prove a prima facie case
of the offense alleged in the complaint, the
defendant is entitled to a directed verdict of
“not guilty.”
23. Defendant’s case:
a. Defendant’s direct examination.
b. State’s cross-examination.
c. Defendant’s redirect examination, if any.
d. State’s recross-examination, if any.
e. Defendant rests.
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24. Rebuttal evidence: The prosecution may present
rebuttal evidence in the same manner as the
prosecution’s case-in-chief.
25. Prosecution closes. The defense may present rebuttal
evidence if the prosecution did so.
26. Defense closes.
27. Provide a charge to the jury and a copy
to prosecution and defense.
28. Read the charge to the jury.
29. Closing arguments:
a. Prosecution argues first (may waive).
b. Defense makes its argument.
c. Prosecution has the right to argue last.
d. Both sides are given equal time.
30. Submit case to the jury for deliberations.
31. Verdict:
a. You should see that the verdict is in the
proper form (if guilty, the verdict should
include assessment of punishment) and read
it in open court.
b. Enter the verdict on your docket.
c. If a verdict cannot be reached and it is
improbable that an agreement can be
reached, the jury should be discharged and
the case tried again.
32. Motion for new trial.
See Chapter 10 in this book.
33. Appeal
See Chapter 10 in this book.
If the defendant is found guilty, the judge should
inform the defendant of the right to appeal. The
defendant is not required to give notice in open court.
However, the notice of appeal and appeal bond must
be filed within 10 days of rendition of judgment.
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